ASST CIT-4(2), MUMBAI V. HINDUSTAN ORGANIC CHEMICALS LTD, MUMBAI

ITA 4899/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2945 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2013-2014
• Appeal Filed On: 20-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL H BENCH MUMB AI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH JUDICIAL MEMBER ITA NO. 4899/MUM/2018 (ASSESSMENT YEAR 2013-14 ) ITO 4(2)(2), ROOM NO. 640, 6 TH FLOORAAYAKARBHAVAN, MK ROAD MUMBAI , PAN: AAACH 2663P VS. HINDUSTAN ORGANIC CHEMICAL LTD, POST OFFICE RASAYANI, TALUKA , DISTRICT RAIGARH MAHARASHTRA 410207 APPELLANT RESPONDENT ASSESSEE BY : SHRI K. GOPAL ADVOCATE REVENUE BY : SHRI MANOJ KUMAR SINGH (SR. DR) DATE OF HEARING : 06.08.2019 DATE OF PRONOUNCEMEN T : 06 .08.2019 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER ; 1. THIS APPEAL BY REVENUE IS DIRECTED AGAINST THE ORDE R OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-9 [HEREINAFTER REFERRED AS THE LD. CIT(A)], MUMBAI DATED 14 JUNE 2018, WHICH IN TU RN ARISES FROM THE ASSESSMENT ORDER DATED 30 TH DECEMBER 2015 2016 PASSED UNDER SECTION 143(3) OF THE ACT. THE REVENUE HAS RAISED T HE FOLLOWING GROUNDS OF APPEAL: (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, LEARNED COMMISSIONER (APPEALS) ERRED IN DELETING DISALLOWAN CE OF EMPLOYEE CONTRIBUTION TO THE PROVIDENT FUND OF 1,06,51,965/-WITHOUT APPRECIATING THE FACT THAT EMPLOYEES CONTRIBUTION, BEING IN THE NATURE OF TRUST MONEY IN THE HANDS OF THE EMPLOYER CANNOT BE ALLOWED AS A DEDUCTION IF NOT PAID IN THE RELEVANT FUND BEFORE T HE DUE DATE AS PRESCRIBED IN EXPLANATION UNDER SECTION 36 (1)(VA) OF THE ACT. ITA NO. 4899/MUM/2018 HINDUSTAN ORGANIC CHEMICAL LTD (AY-2013-14) 2 2. AT THE OUTSET OF HEARING THE LEARNED AUTHORISED REP RESENTATIVE (AR) OF THE ASSESSEE SUBMITS THAT THE GROUNDS OF AP PEAL RAISED BY REVENUE IS SQUARELY COVERED BY THE DECISION OF HON BLE BOMBAY HIGH COURT IN ASSESSES OWN CASE FOR ASSESSMENT YEAR (AY) 2006 - 07. THE LEARNED AR FOR THE ASSESSEE FURTHER SUBMITS THAT THE LEARNED COMMISSIONER (APPEALS) WHILE GRANTING RELIE F TO THE ASSESSEE RELIED UPON THE DECISION OF HONBLE JURISD ICTIONAL HIGH COURT IN ASSESSES OWN CASE. THE LD. AR FOR THE ASSE SSEE FURNISHED THE COPY OF THE DECISION OF HONBLE HIGH COURT REPO RTED VIZ;366 ITR 1 (BOM) 3. ON THE OTHER HAND, THE LEARNED DR FOR THE REVENUE A FTER PERUSAL OF THE GROUNDS OF APPEAL, FAIRLY CONCEDED THAT THE GROUNDS OF APPEAL RAISED BY REVENUE IS COVERED IN FAVOUR OF ASSESSEE AND AGA INST THE REVENUE BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN ASSESS ES OWN CASE FOR AY 2006-07. HOWEVER, THE LEARNED DR FOR THE REVENUE SUBMITS THAT HES RELYING UPON THE ORDER OF ASSESSING OFFICER IN ORDER TO KEEP THE ISSUE ALIVE AS THE REVENUE MAY HAVE CHALLENGED THE ORDER OF HIGH COURT IN HONBLE SUPREME COURT 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NO TED THAT THE ASSESSING OFFICER DURING THE ASSESSMENT MADE THE DI SALLOWANCE ON ACCOUNT OF EMPLOYEES CONTRIBUTION TO PROVIDENT FUN D ON THE GROUND ITA NO. 4899/MUM/2018 HINDUSTAN ORGANIC CHEMICAL LTD (AY-2013-14) 3 THAT THE SAME WAS NOT DEPOSITED WITH THE STATUTORY AUTHORITIES WITHIN PRESCRIBED PERIOD UNDER EMPLOYEE PROVIDENT FUNDS AN D MISCELLANEOUS PROVISIONS ACT. WE HAVE NOTED THAT THE LEARNED COM MISSIONER (APPEALS) WHILE FOLLOWING THE DECISION OF HONBLE B OMBAY HIGH COURT IN ASSESSEE OWN CASE FOR AY 2006-07(SUPRA) AN D DELETED THE DISALLOWANCES/ ADDITIONS, WHEREIN IT WAS HELD THAT WHEN THE ASSESSEE COMPANY MADE THE PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUNDS, THE ASSESSES CLAIM COULD NOT BE DI SALLOWED ON ACCOUNT OF DELAYED PAYMENTS IN VIEW OF THE AMENDMEN T TO SECTION 43B. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT, WE DO NOT FIND ANY MERIT IN THE GROUNDS OF APPEAL RAISED BY REVENUE. 5. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT THE TIME OF HEAR ING SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 06.08.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR H BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER , DY./ASST.REGISTRA R ITAT, MUMBAI